Excerpt:.....officer as that officer had knowledge of their claims as regards the mortgage of 1859, that the claims of defendants nos. 8 to 10 were not discharged under section 29 b, clause (3) as the claims were not against the talukdari estate and it was not therefore necessary for defendants nos. 8 to 10 to put in their claims. on appeal:-;reversing the decree relating to defendants nos. 8 to 10, (1) that the claim against them was not bad for misjoinder of causes of action, as the plaintiff was endeavouring to get possession of all the suit lands mortgaged in 1859, and there was no reason why all questions as to the amount due on the sub-mortgages should not be decided in one suit;;(2) that as defendants nos. 1 to 7 represented that they were owners, defendants nos. 8 to 10 were entitled to..........to get possession of certain survey numbers alleged to belong to the talukdari estate. the suit property had been mortgaged in 1859 by the then talukdar to the predecessors-in-title of defendants nos. 1 to 7. it seems that they partitioned amongst themselves the suit property, and dealt with the suit property as if they were owners, executing various mortgage deeds between 1895 and 1906 which resulted in 16 acres and 241/2 gunthas becoming mortgaged to defendants nos. 8, 9 and 10, while 1 acre and 121/2 gunthas of the suit property remaining in possession of the second defendant, the judge found that defendants nos. 8 to 10 had been in possession for more than twelve years after the lands had been mortgaged to them, although there seems to be an error with regard to the mortgage.....

Judgment:

Norman Macleod, C.J.

1. The suit was filed by the plaintiff as Talukdari Settlement Officer and manager of the estate of Naharsangji Mehramansingji, the Thakor Saheb of Dehevan, to get possession of certain survey numbers alleged to belong to the Talukdari estate. The suit property had been mortgaged in 1859 by the then Talukdar to the predecessors-in-title of defendants Nos. 1 to 7. It seems that they partitioned amongst themselves the suit property, and dealt with the suit property as if they were owners, executing various mortgage deeds between 1895 and 1906 which resulted in 16 acres and 241/2 gunthas becoming mortgaged to defendants Nos. 8, 9 and 10, while 1 acre and 121/2 gunthas of the suit property remaining in possession of the second defendant, The Judge found that defendants Nos. 8 to 10 had been in possession for more than twelve years after the lands had been mortgaged to them, although there seems to be an error with regard to the mortgage of 1906 which was less than twelve years before suit. As the defendants Nos. 1 to 7, mortgagees of the Talukdars, represented that they were owners, defendants Nos. 8 to 10 were entitled to rely upon that representation for the purposes of Article 134 of the Second Schedule to the Indian Limitation Act. The rights of defendants Nos 8 to 10 to whom defendants Nos. 1 to 7 executed mortgages would be established after twelve years as against the Talukdar, and if he wished to redeem and recover possession of the properties, he would have to pay defendants Nos. 8 to 10 the amount due on the mortgages with regard to which they had been in possession for more than twelve years. The Judge found that the plaintiff's claim to get possession from defendants Nos. 8 to 10 was bad for misjoinder of causes of action, and dismissed the suit with regard to those defendants. The only result of that would be that the plaintiff will have to file another suit against those defendants to recover possession. But in our opinion the Judge's decision was wrong. There is no reason why the plaintiff should not join defendants Nos. 8 to 10 in a suit against defendants Nos 1 to 7. As he was endeavouring to get possession of all the suit properties, and the only result of defendants Nos. 8 to 10 establishing their claims under Article 134, would be that the plaintiff, in order to get possession of the lands mortgaged to them, would have to pay the amount due on the mortgages executed by defendants Nos. 1 to 7, there is no reason why all those questions should not have been decided in one suit.

2. Then the Judge has allowed the plaintiff to redeem the plaint lands remaining in possession of defendant No. 2 on payment of Rs. 95 within six months.

3. The plaintiff appeals against that part of the decree on the ground that he issued notice under Section 29B of the Gujarat Talukdars Act, and no answer to the notice was received within six months allowed by that section. The Judge says:

In so far as defendants 1 to 7 are concerned it is clear that during the life-time of the father of the plaintiff the estate was in the hands of the Talukdari Settlement Officer. He had sent for the original mortgage deed and taken a copy of the deed. Be became aware of the claim. It was not necessary for defendants 1 to 7 to have put in a claim again. Considering these circumstances I am of opinion that the section is not applicable to the facts of the present case.

4. That decision disregards the decision of this Court in Shankerbhai v. Raisingji : AIR1917Bom235 in which the plaintiff resisted the right of the Talukdari Settlement Officer to serve him with a notice under SectionS 202 and 79A of the Bombay Land Revenue Code on the ground that he was a mortgagee, and had represented to the Talukdari Settlement Officer that he was a mortgagee before Section 29B had been added to Bombay Act VI of 1888, but the Court held that the representation by the plaintiff that he was a mortgagee was not a notice complying with the provisions of Section 29B, which was not in existence at that time, and that as he had not answered to the notice issued under Section 29B of the later date, his claim could not be considered.

5. We may also refer to Purushottam v. Rajbai (1909) 11 Bom. L.R. 1358 where it was decided that although a decree had been passed against a Talukdar, which was being executed before Section 29B was enacted, still notice of the claim was necessary after the notification under Section 29B had been issued; and the only question was whether the two written applications for the execution of the decree made after the notification were sufficient notices in writing of the plaintiff's claim. It must be inferred from that judgment that notices were required after the notification in spite of the fact that a decree passed against the Talukdar was being executed.

6. Therefore it would appear that although the plaintiff had knowledge of the original mortgage deed of 1859, those who were desirous of claiming under that deed were bound to give notice in writing of their claim after the notification under Section 29B was issued.

7. With regard to defendant No. 2, no such notice was given by him, and therefore, the plaintiff was entitled to possession of that part of the suit property which is in his possession without payment.

8. With regard to that portion of the suit property which is in possession of defendants Nos. 8 to 10, it has been argued that they had no knowledge that the property was Talukdari property, and that, therefore, they could not have been expected to give notice of their claim when the notification was issued under Section 29B. But Section 29B(2) especially provides for such a case 'where the Managing Officer is satisfied that any claimant was unable to comply with the notice published under Sub-section (1), he may allow his claim to be submitted at any time after the date of the expiry of the period fixed therein; but any such claim shall, notwithstanding any law, contract, decree, or award to the contrary, cease to carry interest from the date of the expiry of such period until submission', and even if the Managing Officer is not satisfied that the claimant was unable to comply with the notice, and decides that his claim has been duly discharged, it would be still open for him to claim in a suit to ask for a decision of the Court that he was unable to comply with the notice, and if the Court is satisfied that the claimant had sufficient reason for not being aware that the property, against which he had a claim, was Talukdari property, then we have no doubt that the Court would allow the claim. But in this case defendants Nos. 8 to 10 were served with notice so far back as 1912. They were bound then to give notice of their claim against the property to the plaintiff, and to ask him to give a decision under Section 29B(2). It is far too late now to ask this Court in appeal to hold that they were unable to comply with the notice published under Sub-section (1) in 1905.

9. The result must be that the appeal succeeds, and that the plaintiff is entitled to recover the suit property from the defendants in possession with costs throughout.